The burden of proving due execution and attestation of a will lies on the propounder, but once this is established, the burden of proving undue influence shifts to the party alleging it.

( 1 ) THE learned Additional District Judge. 9th Court, Alipore by his judgment and decree complained of has rejected the caveat filed by the appellant and has directed that the probate be issued in favour of the respondent No. 1, Alok Kumar Aich, in respect of the alleged will of late Amarendra Chandra Aich, who died on 29th Dec. 1975. The appellant and the respondent No, 1 are respectively the eldest and the youngest sons of the deceased testator. Amarendra Chandra Aich, the respondent No. 2 is his widow and the respondents 3 and 4 are his daughters.

( 2 ) MR. M. N. Ghosh, learned advocate on behalf of the appellant, has submitted that the respondent No. 1 who propounded the aforesaid will of deceased Amarendra Chandra Aich, could not and did not prove the due execution and attestation of the said will and also could not and did not explain the suspicious circumstances relating to the probatp in respect of the said alleged will of Amarendra and therefore he ought to be refused probate on the ground that by exercising undue influence upon the testator. Amarendra, Alok, the respondent No. 1, the propounder had procured the said will under which the propounder himself was the principal beneficiary.

( 3 ) HAVING given our anxious consideration to the matter, we find no substance in the above submissions made on behalf of the appellant and we hold that the learned Additional District Judge has rightly granted probate in respect of the said will whose execution and attestation were satisfactorily proved and that the appellant's case regarding undue influence cannot be accepted.

( 4 ) THE aforesaid will (Ext 1) was in Bengali language undisputedly written by the deceased testator, Amarendra Chandra Aich. who had signed on each page and also put his signatures on its last page. Mr. Ghosh, learned advocate for the appellant, himself fairly conceded that the law makes a great presumption in favour of the genuineness of such a holograph will (vide Ajit Chandra v. Akhil Chandra. ; Santashila v. Narendra Nath (1929) ILR 56 Cal 55: (AIR 1929 Cal 290 ).)

( 5 ) THE Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee. . had observed that the will undisputedlv was a holograph will admittedly in the handwriting of the testator. In the last paragraph of the will the testator had stated that he had signed the will in the presence of the witnesses and the witnesses had signed in his presence and in the presence of each other raised strong presumption of its regularity and it being duly executed and attested,

( 6 ) THE appellant neither pleaded nor proved that at the time of the execution of the will the testator, Amarendra Chandra Aich, did not possess testamentary capacity. Although Amarendra was an aeed person and suffered from some kind of heart ailment, the same did not impair his mental capacity to make a will. Sailendra Nath Mitra. Was the husband (?) of Amarendra Nath Aich's wife, (DW 3), testified that when he met him last Amarendra was not keeping physically fit. He would not go out for long walks. He would only move about very little but DW 3 claimed that after Durga Puja in the year 1975 he had visited Amarendra to offer Vijaya greetings. At that time. Amarendra was ailing and had discussion with DW 3 over worldly affairs,

( 7 ) WE have no reason to disbelieve the evidence of PW 4. Amiya Kumar Sen. that the testator Amarendra had consultations with him after he had come to PW 4 with notes regarding the will. PW 4 further testified that the testator was in a fit mental condition. After interval of about two months towards early December, the testator had come to PW 4 with the will engrossed and had told Amiya Sen. PW 4. that he had intended to have the will registered as early as possible. PW 4 also deposed about the attestation of the will by him and also about the registration of the will. DW 3, Sailendra, also claimed that he and Amarendra had discussion about making of a will by the latter. T